92 Decision Citation: BVA 92-28984
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-14 023 ) DATE
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)
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Sitting at Sioux Falls, South Dakota
THE ISSUE
Entitlement to an increased rating for residuals of a
fracture of the right clavicle, evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert A. Leaf, Counsel
INTRODUCTION
This matter came before the Board on appeal from rating
decisions of the Sioux Falls, South Dakota, Regional Office
(hereinafter RO). The veteran served on active duty from
December 1965 to November 1969. A January 1991 rating
decision denied an increased evaluation for residuals of a
fracture of the right clavicle. A notice of disagreement
was received in February 1991. A statement of the case was
issued in March 1991. A substantive appeal was received in
May 1991. A hearing was held before a traveling member of
the Board in June 1992. The case was docketed at the Board
in August 1992.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended, in essence, that the veteran experiences
pain, weakness and limitation of motion of the right
shoulder. It is maintained that he can raise his arm no
farther than just above shoulder level. It is asserted that
limitation of motion of the shoulder has progressed
considerably in recent years. It is contended that the
veteran was passed up for promotion in his job as a
warehouseman because of his inability to lift weights
greater than 50 pounds.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that there is an approximate balance
of positive and negative evidence on the merits, creating
doubt, the benefit of which is resolved in the veteran's
favor to support assignment of a 20 percent rating for
residuals of a fracture of the right clavicle.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. Residuals of a fracture of the right clavicle are
manifested primarily by adhesions of the capsule and/or
rotator cuff, fatigue-pain, and limitation of motion of the
right shoulder.
CONCLUSION OF LAW
A 20 percent rating for residuals of a fracture of the right
clavicle is warranted. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. § 4.7 and Part 4, Code 5203 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that we have found that the
veteran's claim is "well grounded" within the meaning of
38 U.S.C.A. § 5107. That is, we find that he has presented
a claim which is not implausible. We are also satisfied
that all relevant facts have been properly developed and
that no further assistance to the veteran is required to
comply with the duty to assist mandated by 38 U.S.C.A.
§ 5107.
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Service medical records reveal that the veteran sustained a
fracture of the right clavicle in an automobile accident in
April 1969. An examination was conducted in March 1970 by
the former Veterans Administration, now Department of
Veterans Affairs (hereinafter VA). It was found that the
veteran had excellent movement of the shoulder and clavicle
in all planes. There was no limitation of motion detected
in any plane; no loss of function was observed.
A VA examination was conducted in October 1989. The veteran
related that, about 1988, he had begun to experience aching,
pain and reduced ability to move the right arm. He remarked
that, at present, he was unable to use the right arm above
the shoulder or lift significant weight to shoulder level.
This had affected his ability to perform his work as a
maintenance man at a VA medical facility.
On physical examination, there was no apparent atrophy of
the right shoulder girdle or right upper arm muscles.
Crepitus and tenderness were detected over the
acromioclavicular joint with any motion of the humerus,
especially with rotation. There appeared to be fixed
adhesions in the shoulder capsule or cuff as the arm was
abducted or the humerus rotated.
Range of motion of the right shoulder was as follows:
135 degrees' forward elevation, 100 degrees' abduction,
80 degrees' external rotation, and 40 degrees' internal
rotation. X-rays showed an old healed fracture involving
the clavicle. The shoulder joint showed no abnormality.
The diagnosis was history of fracture of right clavicle and
recent loss of function--no bony pathology, but fixed
adhesion of either shoulder capsule or shoulder girdle
muscles.
A copy of the description of physical requirements of a
warehouseman is associated with the claims folder. It
states that a candidate for the position must be capable of
handling, unassisted, individual items weighing up to
100 pounds.
A March 1990 statement from a VA physician indicates that
the veteran had been seen on an outpatient basis during 1988
and 1989 for complaints of back and shoulder discomfort. It
was the physician's opinion that the veteran was not a
suitable candidate for work in a warehouse which involved
repeatedly lifting heavy objects.
Of record is an April 1990 statement from a personnel
officer of the veteran's employer. It relates that an offer
of promotion to warehouseman had been withdrawn since the
veteran had not passed a physical examination.
A VA examination was conducted in December 1990. The
fracture site of the clavicle was firm and not moveable.
There was no disfigurement. Marked tenderness was elicited
over the bicipital tendons and shoulder joint. Abduction,
forward bending and rotation of the shoulder were limited by
what felt like a firm, resistant adhesion in the shoulder
joint and adjacent area. There was no apparent atrophy of
shoulder girdle muscles. Range of motion of the right
shoulder was as follows: 110 degrees' forward
elevation, 100 degrees' abduction, 30 degrees' external
rotation, and 35 degrees' internal rotation. The diagnosis
was healed fracture of right clavicle with range of motion
loss due to adhesions of bicipital tendon, capsule and
possible rotator cuff pathology.
A hearing was held before a VA hearing officer in June
1992. The veteran testified that he was right-handed. The
remaining substance of the veteran's testimony is contained
in the contentions portion of this decision.
A review of the record demonstrates that limitation of
motion of the right shoulder has, as contended, increased
considerably, when results of a VA examination in December
1990 are compared with those recorded on VA examination in
October 1989. In particular, forward elevation had
decreased by 25 degrees; external rotation had decreased by
50 degrees. It has been objectively demonstrated that pain
accompanies the veteran's efforts to raise his arm above
shoulder level. Fixed adhesions of the shoulder capsule or
rotator cuff apparently impede the veteran in raising his
arm above shoulder level and in lifting weight. Functional
impairment from residuals of the fracture of the right
clavicle has adversely affected the veteran in the
workplace, as evidenced by the withdrawal of an offer of
promotion because of his inability to perform the tasks of a
warehouseman full time.
Resolving any and all benefit of doubt in the veteran's
favor, the Board finds that impairment of the clavicle is
sufficiently severe that the disability picture more nearly
approximates criteria required for assignment of a
20 percent rating. 38 C.F.R. § 4.7 (1991) and Part 4,
Code 5203. In reaching our determination, we have considered
functional loss which, in the veteran's case, is produced by
pain, adhesions and limitation of motion. 38 C.F.R. § 4.40
(1991). The record does not, however, support assignment of
a rating greater than 20 percent, as there is no medical
evidence of limitation of motion of the arm midway between
the side and shoulder level or of ankylosis of the shoulder
joint. 38 C.F.R. Part 4, Codes 5200, 5201.
ORDER
A 20 percent rating for residuals of a fracture of the right
clavicle is granted, subject to governing criteria
pertaining to the payment of monetary awards.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
B. KANNEE (MEMBER TEMPORARILY ABSENT)
ALBERT D. TUTERA
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.